Tuesday, May 18, 2004

Our website, marklitwak.com has been expanded with a large, new section devoted to frequently asked questions. You’ll find them by clicking on the FAQ link in the menu bar above. Three recent articles written by Mark have also been posted: "Soft Money in Hard Times" (published in Moviemaker), "Runaway Home" (published in Los Angeles Lawyer) and "Protecting Your Stories" (published in Focus In). You’ll find these PDF articles on Mark’s articles page (click on the Articles link in the menu bar).

MARK TO TEACH SELF-DEFENSE IN JUNE & NOVEMBER DALLAS

On June 4, Mark will be at the Southwest Film, Arts & Television Conference in Dallas to give a talk on intellectual rights and negotiating distribution deals. For more information go to www.swaftconvention.com/filmmakers.asp.

LOS ANGELES

On June 12-13, Mark will be at UCLA teaching "Self-Defense for Independent Filmmakers: Protecting Your Legal Rights" In this intensive weekend seminar, filmmakers learn how to anticipate problems before they arise in their negotiations with production and distribution companies and create incentives to encourage the companies to live up to their agreements, including performance incentives, default penalties, and arbitration clauses. In the event of an unresolvable dispute, participants learn what remedies are available to enforce their rights. To enroll in the course online, go to www.uclaextension.com and enter Course Reg # Q3515U.

NEW YORK CITY

On Nov. 6, Mark will conduct a "Self-defense for Writers and Directors" seminar for New York Volunteer Lawyers for the Arts. He will explain how writers and directors can prevent problems from arising by properly securing underlying rights and by encouraging the other party to live up to agreements by adding performance milestones, default penalties and arbitration clauses. Participants will also learn what remedies are available to enforce their rights in the event of a dispute. For more information or to register, please call Alexei Auld at 212-319-ARTS (2787) ext. 12.

Thursday, May 06, 2004

Mark's article on international film production incentives is running in the May 2004 edition of "Los Angeles Lawyer" magazine. A PDF version of the magazine is available online at www.lacba.org/showpage.cfm?pageid=40.

CONGRATULATIONS TO OUR CLIENTS

Kudos to our clients Joseph Mealey and Michael Shoob. Their film, "Bush's Brain" is an official selection of the TriBeCa Film Festival and will be screening at 7:30PM on Thursday, May 6, at the Tribeca Performing Arts Center 1. Tickets are $10 and are available at the door only. For more information about the Tribeca Film Festival, visit www.tribecafilmfestival.org .

Congratulations to our client Eileen Craft. She is co-producing the film "Mrs. Hotchkiss' Ballroom Dancing and Charm School," which began production this week. The film stars Robert Carlyle, Marisa Tomei, John Goodman, Mary Steenburgen, Sean Astin, David Paymer, Donnie Wahlberg, Camryn Manheim, Ernie Hudson, and Danny DeVito.

WHAM-O GETS SLAMMED, JUDGE DENIES TRO AGAINST PARAMOUNT

Last year's comedy release "Dickie Roberts: Former Child Star" memorably featured a "Slip 'N Slide" in its advertisements and the film. The product's manufacturer, Wham-O Inc., didn't find it so funny and consequently sued the film's distributor, Paramount Pictures, for trademark infringement and dilution. In addition, Wham-O requested a temporary restraining order (TRO). Wham-O had not paid for product placement; Paramount had not contacted Wham-O for permission to include the product in its film.

In a succinct decision that will likely be cited in future trademark infringement and dilution cases, Federal District Judge Marilyn Patel denied Wham-O's requests and rejected its claims.

Wham-O alleged that the "Slip 'N Slide" scene showed its product being misused in a painful and dangerous manner, and therefore diluted its trademark. Furthermore, featuring the product in the film blurred the distinctiveness of its marks and created consumer confusion.

In denying Wham-O's claims, Judge Patel determined that it was "obvious and unmistakable" that the slide was being misused, and the characters even go so far as to say that the slide is being misused. The judge further noted that "it is not unusual for movie producers to use … products and props … to cultivate interest in a film. … Nothing … suggests that [Paramount] used [Wham-O's] marks to imply that [Wham-O] placed its imprimatur on the film; nowhere in [Paramount's] publicity efforts is [Wham-O's] mark unreasonably displayed or abused."

Wednesday, May 05, 2004

DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.

Question: I am currently working with another writer. He has a completed script. I am doing some rewrites and I hope to shop it around. My questions are: Do I need to option this script and how? Do I get writer's credit? And what would my steps be in registering this work?

Answer: You should have a written agreement regarding your collaboration. If you want an option to purchase rights to the work, you should have a written option agreement. Otherwise, you risk losing rights to the script. After spending a great deal of effort fixing this script, you do not want to find yourself in a position where the author refuses to acknowledge an agreement you did not put into writing.

The work can be registered with the Copyright Office at the Library of Congress (http://www.copyright.gov). The parties determine credit, but if the script is subject to the Writers Guild agreement, the Guild will determine how writing credit is allocated in the event of a dispute.

Question: I want to write a screenplay about the death of a friend that happened 28 years ago. Although I'm changing the names and dates, the way the death occurred will undoubtedly raise a red flag with the family if they are living. Do I need permission from the family of the deceased?

Answer: In regard to writing about people who are dead, you don't have to worry about obtaining the family's permission, since defamation and invasion of privacy rights are considered personal and do not descend to the estate of the deceased. Other secondary characters, however, might have a claim for invasion of privacy if what you reveal is considered offensive, or they may claim defamation if they themselves are shown in a derogatory light and the information is not true. By changing the names and the dates, you make it more difficult for the public to identify the people involved. You may also want to add a disclaimer that none of the characters are real individuals. You may also seek the cooperation of the family so that they will share with you inside information and materials that are not in the public domain, such as diaries, which might be helpful in writing the film.

Question: I had an offer for one of my screenplays — $5,000 U.S dollars. Should I take it or ask for Writers Guild minimum?

Answer: Assuming that you are not a member of the Writers Guild, whether you should accept the offer depends on your stature in the industry, how likely it is that there is another buyer who will pay more, and the identity of the buyer. If the buyer is a major studio or production company, it should pay you at least WGA scale. If you are a beginning screenwriter, and this is a smaller, reputable company, you may want to accept its offer, although it would be best if the payment were for an option on the property rather than for buying outright the motion picture rights to that property. Also, try to negotiate a reversion clause in the event your screenplay doesn't get made.

Question: I am about to enter into a contract to write a script on spec for some would-be producers—a dangerous venture, I know. Do you have any words of wisdom on how to maximize my opportunity to sell a script while minimizing the likelihood of being taken advantage of?

Answer: If you are not being paid for the script, you should retain the copyright to it. Make sure it is not a work-for-hire vesting the copyright in the producers. If they don't like the work, at least you will own it, and you can try to set it up elsewhere.

Question: I am in negotiation with a production company to write a script for hire. They won't have money to pay me until (and if) a film is actually made. What should I be aware of in making this deal?

Answer: You are working on spec. You should write the script on your own without any obligation to them, because after all they aren't making any commitment to you. Thus, if you choose to proceed, you should retain all rights to your script and be free to take it elsewhere later.

Question: I'm a first-time screenwriter currently negotiating an Option/Acquisition agreement with a small independent film group. I have an entertainment attorney working with me. I have two questions, really. My questions: (1) Is it unusual for a first-time writer to receive any percentage points? (2) Can you direct me to a group that might help me contact experienced screenwriters so that I might benefit from their advice?

Answer: It is not unusual for a first-time writer to receive a percentage of net profits. Typically, they receive 5% of 100% of the net profits if they receive sole screen writing credits, and 2.5% of 100% if they receive shared credit. As far as a writers' group, you may want to contact the Society of Journalists and Writers, or the Writers Guild, or the Author's Guild.

Question: I'm in a pickle. I'm writing a show with two college buddies, with only a verbal partnership agreement. MTV wants to buy, but we're hung up over credits. Do you know what the difference is between "Created by" and "Story by"? Does one carry more clout in the industry? Does one indicate ownership? One member of our group has an agent who wants the other two partners who are neophytes kept hidden.

Answer: You should contact the Writers Guild and obtain from them information about the differences in credit. "Created by" is a television credit; "Story by" is used for films. For projects subject to Writers Guild jurisdiction, the guild determines who is entitled to credit. The matter is not open to negotiation. If there is a dispute concerning who is entitled to credit, the Writers Guild will arbitrate and make the final determination.

Question: Release forms seem one-sided, completely in favor of production companies. What protection or recourse can a writer have when he or she signs a release form for the sake of having his or her script considered? Sure, a production company may have something in the works similar to the writer's material, but it seems "release forms" also can open the door for the outright theft of intellectual property without fear of any writer "claims" being made. Once a writer signs a release form, what specific steps can the writer take if a company produces something similar to or even identical to the writer's material?

Answer: Release forms may make it more difficult for you to sue someone for ripping you off, but such forms may not provide a complete shield. California does not, as a matter of public policy, allow release forms to protect people from their own intentional wrongdoing. Consequently, if the person who rips you off does so intentionally, they may be liable regardless of the terms of the release. If, on the other hand, the other party merely is negligent in infringing your work, the release may prevent you from prevailing in an action against the other party.

Question: Can you give us some parameters of what options on scripts are going for these days? What are the percentages? What is standard? Is it based on a percentage of the (proposed or actual) production budget or what? If you would, please give us as much information about an option deal as you can.

Answer: Most scripts that are written are never optioned and they are not produced. So it's hard to generalize. Obviously, the most desirable scripts when they are optioned or bought outright by a major studio, the price can be more than a million dollars. Options typically are 10% of the purchase price. For beginning writers who have never sold a script before or had anything produced, scripts may be optioned for nominal consideration, and the purchase price may be as low as a few thousand dollars. If you agree to option your property, especially for modest compensation, you should ask for a bonus when the movie gets made and a reversion clause that would revert all rights to you in the event the script does not go into production within five years.

Question: I am a freelance screenwriter. I have written two film adaptations based on novels (which I wrote, initially, as an exercise) and am now interested in marketing. I have tracked the film rights to their source and am planning on initiating negotiations for option(s)—having used your work as a reference. At this point I have not sought an agent to help me obtain these rights, nor assist in marketing the work when (more to the point, if) I can obtain the rights. My questions are: I would like to use these works—in addition to my original work—to seek representation. Am I committing any illegal or unethical violations by showing these works to an agent, having not yet gained an option? (Naturally, I would make that point clear, and would not allow the agent to market the work without an option.) And, second, does the agent commit any wrongdoing reading the work? Thank you for your time (and for your previous works, which I have found to be priceless.)

Answer: Creating a derivative work (i.e. a screenplay based on someone else's novel) without permission is usually copyright infringement. Sometimes a fair use, such as a parody, might be protected. From a practical point of view, unless you exploit the screenplay by making a movie based on it, it's unlikely that the novelist would bother to file a lawsuit against you. Moreover, if the screenplay were not produced, it the copyright holder's actual damages would be modest, but if the work was registered in a timely manner, then they could obtain statutory damages and reimbursement of attorney fees.

Question: I have an independent producer interested in my script. I am a first time scriptwriter. They plan to shoot on a million dollar budget. What kind of money should I be looking for? Do I ask for up front money as well as a back end deal? What would you say would be a good deal? Thank you.

Answer: The amount of payment that you should receive is dependent upon your stature and track record and the resources of the independent producer. If this is a very low-budget film, funded with independent financing, I have seen scripts acquired for as little as $5,000 up front. For a million dollar film, a fee of $35,000–$50,000 seems reasonable. If you are going to give your script to someone for a very minimal payment, then it seems to me you should be rewarded handsomely on the back end with a significant deferment and/or participation in the profits. As a general rule, 5% of a production budget goes toward acquisition of underlying life story rights and/or any literary properties and payment for all screenplays and re-writes. However, this 5% figure is somewhat inaccurate for very low-budget pictures or very high-budget pictures.

Question: What are the legalities of using actual business names or organizational names in a Screenplay? For Example: McDonald's, Jackson Memorial Hospital, Outback Steakhouse, etc. I have never known if I can use actual names or if I have to make up the names of hospitals, restaurants, etc.

Answer: Generally speaking, you can use actual names of people, hospitals or restaurants without their permission. However, if you defame these entities by portraying them in a derogatory light, you may be liable for defamation. Likewise, if you invade the privacy of people by revealing intimate details of their lives, you may be liable. If you use these names in any way to indicate that the film was produced by one of these companies, you potentially can be liable for unfair competition and/or trademark infringement. So the answer to your question is that liability is determined by how you use the names. Under the First Amendment, you are permitted to mention other people in books and films without their permission. Before you go into production, it would be a good idea to have your script reviewed by an experienced entertainment attorney to point out any potential pitfalls. Of course, it never hurts to obtain a release. And to play it safe, you may want to have your prop person come up with a pseudo product so there is no chance of liability.

Question: As a general rule of thumb, how much would a revision of an earlier registered (WGA) and copyright registered (LOC) version need to change until it would be a good idea to re-register the new version. If I changed a character name as an example, but nothing in the scene or anywhere else in the screenplay, would I need to re-register it with WGA and LOC? What's the general guideline?

Answer: Depends on how paranoid you are. I would not re-register a script simply because one character's name was changed. However, if you make significant changes to a script, you may want to re-register it because the new material would not be protected under the previous registration. Registration with the Writers Guild simply creates evidence in the case of a plagiarism dispute, evidence that you created the work first. Registration with the Library of Congress creates a public record of your claim of authorship and also may entitle you to certain other benefits such as reimbursement of attorney fees and statutory damages (if the registration was made in a timely manner).

Question: I'm a NYC screenwriter who has written a low-budget script. My friend, an LA film editor for the past 20 years, with several A-movie credits, but who is looking to move to producing/directing, took the script to a producer with several feature credits. The Producer says she can put together a $3 million budget if we bring her a package (a director or lead actor or both) that she can sell. We are currently working on this, with most of the work being done by my L.A.-based editor friend. My questions are: (1) How can we attach my editor friend to the script so he does not get left behind? Should he option the script for a token amount? Should we set up some kind of limited partnership? (2) In a $3 million budget, how much money could I, an unknown, unproduced screenwriter, expect to make? (3) Given that I don't think I'm going to make enough $$ to change my life, how can I remain attached to the production in a meaningful way? Am I looking for a production credit?

Answer: You can attach your writer friend by simply refusing to give an option on the script to a producer unless your editor friend is attached as a co-producer, or the buyer agrees to whatever other terms you insist upon. You can also let your editor friend option the script from you, in which case he would have control over the project, not you. As for how much compensation you can expect to receive, as a rough rule of thumb, no more than 5% of the budget for a film should go to acquisition of story rights, including any life story rights needed, any underlying literary material such as a book, and fees for all the writers and re-writers. This 5% guideline is not accurate for low-budget features, or very expensive features. I would ask for a minimum of WGA scale against 5% of the budget. Be prepared to go down to 3% of the budget. From the point of view of an unproduced screenwriter, the most important benefit will be having credit in a finished film. This will give you credibility and enable you to get a greater fee next time.

Question: I am trying to option a book, I have been a casting director for many years and I know how to get quotes easily on actors and to make offers on names, but in this new area I feel like a student. I know that I need to make an option based on some info as to what the authors of other books may have sold for and even other comparable books may have been optioned for. Where can I get that info? If it were an actor I can call the casting director on his last few films, but this doesn't seem that clear cut.

Answer: As a general rule of thumb, options are often 10% of the purchase price. However, options are negotiable and it is not uncommon today for authors with little clout to grant options for a nominal amount of money in the hope a producer will succeed in turning their book into a film. The purchase price will depend greatly on the demand for the work. A John Grisham novel will go for millions, and the author may refuse to option it at all, insisting on an outright sale. Probably the best source to obtain that type of information you want is to contact an experienced literary agent who actively buys and sells book rights.

Question: My partners and I recently came up with an idea for a TV series that we would like to develop. Part of the angle of the show (and potential problem) is that we would like each episode to be written by non-union, non-professional writers. We would basically be soliciting scripts from the average American (a new writer for every episode). Our writing staff would then re-work the scripts if necessary to prepare them for shooting. Before we start pitching this idea to anyone, we need to know if it's legal to use non-union writers for TV.

Answer: You are under no obligation to become a signatory to the Writers Guild, or any other union. Keep in mind, however, that most experienced and talented screenwriters are members of the Writer's Guild. The work product by non-professional writers may not be very good.

Question: What type of permissions would I need for a book I've written based on the Andy Griffith Show? It's of the "life's lessons from the Andy Griffith Show" kinds of books and does use quotes from the show. I've seen many other Andy books that don't seem to have gotten permission or the blessings of Mayberry Enterprises or Viacom.

Answer: If you extensively quote the Andy Griffith Show, you may be infringing its copyright. If, on the other hand, you are not quoting the material, but simply commenting or critiquing the Andy Griffith Show, then your work will probably be protected as a fair use. It is really a matter of degree. Try to limit your quotes to those instances where it is absolutely necessary. Make sure the quotes comprise a relatively small portion of your overall work.

Question: I have been in touch with a novelist who was interested in selling his action-thriller novel to a studio. I proposed to turn it into a screenplay first to try and get it sold as a "spec," which I thought would be more profitable for both of us. The author owns the rights but my screenplay will only be based on the novel. He has agreed to let me adapt it.

What do you think is the best course of action to make it fair for both of us and avoid any possible future disagreements? I thought that we could share the money equally from any sale, but am I too unprotected or is he taking an unnecessary risk?

Answer: Since the novelist owns the underlying rights, you cannot prepare a derivative work such as a script, without his permission. Consequently, it is very important for you to make sure you have an agreement ahead of time. A particularly difficult issue you may need to resolve will be what happens if a potential purchaser likes the novel but does not want to buy your script. Are you entitled to any compensation for the work you have invested in the script? If you are a screenplay writer without a track record, it is questionable whether turning a novel into a screenplay will make it more profitable. The novel is being sold on the potential to make a good movie. Once the script is completed, the buyer may perceive that that potential has not been realized. There are thousands of novels published every year, far more than the number of movies produced.

As a general rule of thumb, no more than 5% of the final production budget for a film should go toward acquisition of underlying rights (like this novel), payment for any life story rights, (which apparently does not apply here since it is a fictional work), and to pay for all writers and re-writers. Once you write the script, you have no way of knowing how many rewrites, if any, will be required. How that 5% is divided up is dependent upon the stature of the writer and the marketability of the novel.

Question: I am writing a screenplay based on a professional sports team. I use the name, the stadium where they play, etc. However, all my characters are fictional. Still some will find some of these characters and/or the portrayal of their sport unflattering. By using the names of real teams, am I liable? Where is that line I shouldn't cross? Thank you.

Answer: This is a difficult question because the answer depends on the context. If for instance, you have created a screenplay where there is a fictional New York Yankees team that any reasonable viewer would know is not based on real life events, then it may well be protected under the First Amendment. Part of the difficulty here is that if you have a character portrayed in a negative light, or a character whose privacy is invaded, even if given a fictional name, viewers may think that this person represents a real individual. That person could have a claim against you although you did not use their real name. You should write the script you want and then have an experienced entertainment lawyer clear it before you begin production. For more detailed information, you can consult my book, Dealmaking in the Film and Television Industry.

Question: Thank you for your generosity. An entertainment outsider, I have developed treatments for television specials, television series, and television sports competition series using my expertise and relationships in a specific subject matter - each program is designed with specific broadcast or cable networks in mind for casting, broadcast timing, advertisers, and cross-promotion. I do have a connection or slight relationship with CAA agents and other industry insiders. What might be the best route to pitching the concepts and securing a production deal? I am to understand agencies, such as CAA and UT, will consider concepts, package them (using their talent, of course) and pitch networks.

Answer: Unfortunately, writers are not judged solely on their writing ability. Many times, agencies will not even consider looking at a script by a newcomer unless that script is recommended by an existing client, an industry insider, or someone the agency respects. Assuming you are able to get in the door, and meet with agents at a large packaging agency, you may find that they are not particularly interested in pitches from new writers. They will be more interested in completed scripts. These are much easier to sell for a novice screenwriter. Networks and studios generally don't hire beginning writers to write a screenplay until they have demonstrated that they have the ability to write one.

Question: I am a screenwriter and I adapted a script from a novel. However I have a free option on the book, I do not own the rights. I had a producer interested in my script, but he didn't have the money and wanted to pitch the script to other companies. He absolutely wanted to have all information concerning the book and the author. However, I did not want to give him any information until he signed a contract with me. Everyone around told me that if this person didn't want to sign the contract saying that he would hire me as the screenwriter of the film, he was probably going to cheat me because with all the information he could go directly to the author, buy the rights, and give the job to another screenwriter saying that I had no right to work on this book. Do you see what I mean? Since he didn't want to sign a contract with me, I didn't want to give him the information he wanted, and the deal was over. Do you think I did well and what should I do if such a situation occurs again? Your opinion would be of big help.

Answer: If you have a free option on the book, it means you should have the exclusive option to adapt it into a film. If that is the case, and the contract is legally binding during the term of the option, you have nothing to worry about. No one can go around you. That is the whole point of the option—to take the property off the market so that you have the exclusive right to buy it.

Question: I have recently requested to have my script be read by a production company and although it's probably reaching for the stars, I'd like to know what bargaining room (if any) there is for a screenwriter when a production company wants to option a script. What things should I ask for, what things should I hold firm on, and what things should I ask for. And also, should I hire an entertainment attorney to negotiate this for me (I am unrepresented right now). Is there such thing as a basic price (or a decent price) for an option? I have no idea of what would be considered a "decent" proposal to option.

Answer: Your ability to bargain and improve the deal is a function of how desirable the project is and your stature in the industry. Assuming you are a novice writer with no screenwriting credits, and even if you are not a member of the Writer's Guild of America, you should expect to receive at least Writer's Guild scale for your script, be added to the E&O insurance policy, and be included in the screen and advertising credits. If you have a track record, then you would normally receive a bit more than your last deal.

If the script is very desirable (which might occur if an important director or star wants to do it), you may be able to negotiate for much more. I think it is usually a good idea for the purchase price for a script to be tied to the production budget. The writer might ask, for example, for a price equivalent to 3% of the production budget. That way if the movie becomes a major studio picture for many million of dollars, you would receive compensation commensurate with the budget. The parties may agree to floor and ceiling amounts on this fee. Options are typically 10% of the purchase price, but this is negotiable.

If you are not experienced in negotiating these deals it would be wise to have either an agent or attorney represent you. They will likely probably be able to improve the deal enough to offset their cost.

Also, you should try to retain as much rights as possible (e.g. dramatic rights to turn the script into a stage play, radio, live television, book publishing), and if you grant the producer sequel, remake and television spin-off rights, you should receive passive royalties if those rights are later exploited. Finally, try to include in the deal that the producer will hire you do the first re-write, if a re-write is commissioned, and pay you at least WGA scale for those services. And ask for a reversion clause, so if a picture is not made within 5 years, all rights to the script would revert to you.

Question: I have heard that the Son of Sam law in California has been dropped or modified. What does that mean for writers?

Answer: Son of Sam laws were an attempt to prevent criminals from profiting from books and movies about their criminal activities. In the late 1970's,serial killer David Berkowitz, known as the Son of Sam, terrorized New York. His activities were the subject of a great deal of media attention. In an attempt to stop him from profiting from his crimes, while victims went uncompensated, the New York legislature passed what became known as a "Son of Sam law." Ironically, this law was never actually enforced against Berkowitz because he was found incompetent to stand trial, and the statute only applied to convicted criminals. Moreover, Berkowitz voluntarily paid his share of book royalties to victims or their estates. Nevertheless, other statute legislatures thought such a law had merit, and they enacted their own versions of it. The California law was enacted in 1983, and subsequently amended. One part of the California law imposes an involuntary trust on the convicted felon's proceeds from expressive materials (books, articles, television appearances, etc.) that are based on the story of a felony. These monies are held in trust for the benefit of the victims of the crime. In 1991 the United States Supreme Court (Simon & Schuster v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 1991), held that a similar New York statute was unconstitutional because it violated the First Amendment. The California law was arguably less intrusive than the New York law because it was applied only to convicted felons, and exempted materials that made only a passing mention of the felony. In the recent case of Keenan v. Superior Court of California, 27 Cal. 4th 413 (2002), however, the California Supreme Court held that the California statute violates constitutional protections of free speech. What this means to writers, is that if you are planning to contract with a criminal for his cooperation in developing a book or script, you need not be concerned with a Son of Sam law discouraging the criminal from cooperating with you. However, each state has its own version of the law, and there may be a version that is constitutional, and enforceable. Moreover, those laws that have been struck down could be amended to meet the constitutional objections raised by the courts.
Question: A friend and I were working on a script. Together we came up with the initial idea and the major plot points as well as some details along the way. My partner wrote most of the dialogue and the physical screenplay on his computer, fleshing the story out on paper. My question is...would my contributions warrant a writing credit or a story credit? My "partner" doesn't seem to think so since he spent "hours" behind his computer typing it all out. It's a shame that we are bickering like this and this is probably a sign of the debacle to come. Do you have any thoughts on this?
Answer: This question raises a variety of issues concerning copyright ownership, writing credit, the nature of authorship, and the importance of parties clearly agreeing on the nature of their collaboration at the outset of their working relationship.

The two friends could be joint authors of the work, if that was their intent, and share copyright ownership. Or the parties could have agreed that one party was employing the other, and that the employer is the sole copyright owner of the work. Alternatively, one person could be contributing all the creative work that is copyrightable, while the other is merely providing clerical services, such as typing. In this case, the typist would not be considered a copyright owner regardless of how many hours were spent typing. Since it is unclear to me exactly what each party has contributed, and what agreement the parties made, if any, I cannot predict how a court would determine who is the owner of this work. The copyright owner(s) of the work would determine how it is exploited. In the absence of an agreement, certain legal presumptions might apply. If both parties made creative contributions to the work so that it is deemed the expression of both authors, then they might be presumed to be joint copyright owners in the absence of an agreement that provides otherwise.
Credit is entirely another matter. It is allocated according to the parties' agreement. If the writer is a member of the Writer's Guild, and the employer a signatory to the guild, then the credit allocation rules of the Guild would apply. If a party is not given credit they are due, it might be considered an instance of unfair competition if it mislead the public about the origin of the work. In some countries the denial of credit might be considered a violation of the author's moral rights. The United States recognizes moral rights in regard to fine art, but not in the realm of movies.
The bottom line is that it is very important for the parties to have a clear agreement as to the nature of their collaboration before they begin work. This agreement should be in writing to avoid any future misunderstanding. The Writer's Guild has a model collaboration agreement that is available to Writers. There is also one in my book, Contracts for the Film and Television Industry, 2nd Edition (Silman James Press). Otherwise you can end up in a messy situation where it is unclear what the respective rights of the parties are.
Question: If a writer writes a script on spec intended to be a sequel for a movie or movies already released, what are the legal ramifications? For example, if a writer writes a spec sequel for the Aliens or Scream series, can this script be submitted? What qualifies as Fan Fiction and are there any legal issues with it?

Answer: One cannot create a derivative work without the permission of the copyright owner of the original work. A writer who creates a sequel to another writer's work is creating a derivative work. Such a sequel script is likely to be unusable unless permission of the owner of the original work is obtained. An exception is if the original work has fallen into the public domain, which means it is no longer copyrighted. At that point in time, anyone can create a derivative work. So, for example, all of the Sherlock Holmes tales written by Arthur Conan Doyle are now in the public domain. But most works created in the past 75 years are still protected under copyright law.

It is usually a bad idea for a writer to create a derivative work without permission of the owner of the work it is based upon. Sometimes a writer creates such a sequel in order to demonstrate his/her skill and to offer the script as a writing sample. However, the most impressive example of a writer's skill is a completely original work, not one based on another's creation. If you create a derivative work, you run the risk of wasting your time because without the permission of the owner of the original, the script is unusable. It doesn't matter that you are a fan of the original. Submitting such a script may also damage your reputation because it suggests that you are oblivious to the basic rules of copyright ownership.

Question: When a scriptwriter wants to adapt a book that has been out of print for at least twenty years, is there a "standard" offering the scriptwriter should make to the author for the rights? Would it involve a one-time payment, or is it based on a percentage of future sales?

Answer: The fact that the book is out of print is not, by itself, a factor in determining whether you need to acquire rights to adapt it into a motion picture. What is relevant is whether the book is still protected under copyright law, or has gone into the public domain. The term of copyright has been changed several times, so one needs to determine when the work was created and published to calculate how long the copyright lasts.

Once the work goes into the public domain, anyone can use it, and no payment need be made. If the work is still under copyright, then you need to negotiate for the movie adaptation rights to the book. The amount to pay for these rights varies depending how desirable the work is. If the book is out of print, that probably indicates that this is not a hot book property at this time. The most sought-after books are usually new books that are about to be published, or books that have become bestsellers. Books that have been around for many years, with the movie still available, can probably be obtained for a modest sum.

Often an option to purchase the rights is taken. The option is frequently ten percent of the purchase price, but this is negotiable. The purchase price can vary from a modest sum to millions of dollars for a best selling book. The purchase price is often an agreed upon amount (e.g., $100,000), but might be determined by the budget for the film (e.g., 2.5% of the budget). Sometimes, authors also receive a small portion of the profits from the film.

Question: I have no agent and I just signed a "free option" with a well-known producer. My script will be tied up for the next 9 months. Did I act too hastily? I know the producer has a solid reputation, but I'm having second thoughts. Am I being paranoid? Should I have waited to get an agent/lawyer who could have worked out a better deal? The purchase price is a low six figures, but getting to that point is far down the road. Was I stupid to jump at the first offer? Thanks.

Answer: I don't know about the wisdom of the deal since I don't know the terms of your deal. Free options are not that unusual. I prefer to have my writer clients paid something, even if it is just a few thousand dollars because I think a payment of money evidences a certain amount of seriousness on the part of the producer. At any rate, since you signed the contract, it is too late at this point to renegotiate it. If the option expires without being exercised, you can proceed with your next option in a more cautious manner.

DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.

Question: Is it clearly illegal for a studio to use a title from a copyrighted screenplay for its own work? I copyrighted "Ruby Ridge: An "American Tragedy" as the title of my screenplay many months before CBS decided to produce their miniseries, which is not based on my screenplay. Nobody from CBS ever contacted me, and I have not been compensated.

Answer: Titles are not copyrightable. They can sometimes be protected under trademark laws and laws of unfair competition. In order for a title to be protected, it has to be associated with a series of work and distinguish them from other sources of manufacture than yourself. Another way to protect a title is to register the title with the MPAA, the Motion Picture Association of America, and the Title Registration Bureau, which is binding by virtue of a contract that all the participants and the signatory service sign.

Question: Quick questions on movie titles and trademarks. Prior to a movie being announced, marketed, promoted, and released can the movie title be considered a trademark? Are movie titles trademarkable? If a person owned an Internet domain name, e.g., www.XYZ.com and XYZ was the title of a movie that had not been released, and the title had not been used in a previous movie, would that person be infringing a trademark?

Answer: Trademarks protect product and service names, and company names. When a certain name becomes associated with a certain product or service, trademark rights arise. Some of these rights arise simply from use of the mark. Additional protections arise if you decide to register your trademark. Examples of famous trademarks are Xerox, Apple and IBM. If you are in the computer business, you cannot market your computers as Apple computers unless you have the permission of the company known by that name. Likewise, you cannot set up a hamburger stand across the street from McDonald's and call yourself McDonald's, put up golden arches, or in any way try to pass off your hamburgers as legitimate McDonald's hamburgers, when they are not.

However, titles of individual products like a movie are generally not eligible for trademark protection. Only a series of products from a single source, such as sequels or a television series such as Bonanza, can be protected under trademark law. However, for a one-shot project like a movie, the title would not be protected. The title, however, could possibly be protected under the laws of unfair competition once the title has acquired a secondary meaning. A movie cannot have a secondary meaning with the public before it is released. Thus, after George Lucas had produced and distributed Star Wars, another filmmaker could not distribute a movie called Star Wars II, and trade on the goodwill and name recognition of the original. This would be unfair competition, and would violate various federal and state laws. Whether the use of a name on a product or service violates the trademark rights, or violates various unfair competition laws, may be a difficult call.

Trademark rights are often restricted to a geographical area or type of product. For example, if you operate the Acme Hardware Store in Los Angeles, it would not necessarily prevent someone else from opening an Acme Hardware Store in Brooklyn, a location where you do not do business. Likewise, the fact that you operate a Hardware Store under the mark "Acme" would not prevent someone from setting up the Acme Supermarket because people do not associate hardware and food together. In other words, there is little likelihood of confusion.

Another way to protect titles is with registration with the MPAA. This is protection by contract law, through an arrangement between the MPAA companies and any independent producers who choose to join. It is a contract wherein all parties agree not to infringe each other's titles. There are some limitations because the deal is only binding on those people who choose to sign it. If you wish to contact the MPAA Title Registration Bureau, their number is (818) 995-6600.

Question: You have informed readers "there is limited protection by registering a title at the Motion Picture Association of America Title Registration Bureau." Is there similar protection for titles of television programming; i.e., series, specials, etc.? Thank you.

Answer: The title protection offered by the Motion Picture Association of America is limited because the agreement is only binding on signatories. These include all the member organizations of the MPAA, (essentially the major studios), and any independent producers who choose to sign the agreement. The MPAA does not register titles for television programs. For more information, you can contact the Motion Picture Association of America at (818) 995-6600 or go to their Website at http://www.mpaa.org.

Question: I just discovered your website from my screenwriting listserv group and find it very useful ... thanks! I have a question: My first screenplay in progress is called "Thorn of the Rose." I researched the WGA's site to see if this title was a duplication of another screenplay already written and registered but didn't find any resource on their site that listed every name of screenplays registered. Do I have to worry if that title is already taken?

Answer: Titles cannot be copyrighted, although use of a title in a confusing manner may give rise to an action for unfair competition. Of course, there may be a number of films that share the same title. If the other films that share your title are not likely to be confused with your film (perhaps they are very old, or are no longer being distributed) then you do not have much to worry about. Before finalizing your title, you may want to do a title search to see who else may have used the same or similar title. Title searches can be done through Dennis Angel (914) 472-0820 (online at http://www.lawyers.com/dennisangellaw) or Thomson & Thomson (800) 692-8833 (online at http://www.thomson-thomson.com).

DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.

Question: I am an Independent Producer based in Maryland who is in the process of incorporating. Please advise me on how to proceed. Is it true that it's better to incorporate in Delaware rather than Maryland or Washington, DC?

Answer: There may be little or no advantage to incorporating in Delaware if you are going to have an office in another state and pay taxes there as well. Delaware is desirable because it has liberal corporate governance rules, which probably won't matter for a small company controlled by you. You should consult an attorney or tax accountant to determine the tax advantages and liability issues in regards to incorporating, and whether another form of business entity, such as an LLC might be more advantageous.

Question: I'm a low budget ($20,000) filmmaker preparing to shoot a guerrilla style film in New York City. I'm setting up a corporation and can't seem to get a straight answer on what kind I should set up. Option A, a straight-ahead S-Corp. owned by my partner and I, with investment contracts signed between our company and our investors, or we set up an LLC. What are the advantages and disadvantages of each?

Answer: The most common business entities used by filmmakers are corporations (S or C type), limited liability companies (LLC), and limited partnerships (LP). The best vehicle to use depends on the circumstances, which vary. The major factors are taxes and limiting liability.

One reason to form a company is the desire to protect personal assets from potential liability. If a company that is a separate legal entity from the filmmaker produces a movie, then the filmmaker may not be liable for the debts and obligations of the company. However, for the filmmaker to avoid personal liability, he must sign all contracts in the name of the company and not give any personal guarantees.

The limited liability company (LLC) is a relatively new form of business entity, which combines some of the best aspects of partnership and corporate forms of business while avoiding some of the drawbacks of each. Members of an LLC have the same limited liability protection granted limited partners and corporate shareholders. Unlike a corporation, however, an LLC has more flexibility as to how to pay taxes, and can largely avoid the problem of double taxation.

If your investors are passive investors, you need to comply with the security laws. Whether you do this as a limited partnership, an LLC, or some other method, it doesn't much matter. Complying with the security laws is what is expensive. You do this as a limited offering under Reg. D of the federal and various state analogous statutes, you would be limited to 35 unaccredited investors, you cannot do any public solicitation. Whether your corporation signs contracts with investors, or whether the investors are members of an LLC, the security laws apply either way. For a $20,000 film, it's hard to justify the legal work necessary to comply with the law, therefore, I would suggest you might want to structure your deal in such a way that the security laws don't apply. By taking the money as a gift, or having the investors actively participate in producing the movie, you might be able to avoid these requirements.

Question: I am forming a small independent film production company. Like many others in this position, I don't have a great deal of start-up cash and find the cost of incorporation in California to be prohibitive. I've read about a company that can provide legal services for incorporation for something around $100; additionally, it recommends Delaware as an attractive state in which to form the corporation. What legal and practical disadvantages (and what advantages) are there for a company whose main business is feature film production, to incorporate in Delaware? Also, is incorporation by a company offering this service for this low fee likely to be legally sound?

Answer: You can incorporate yourself simply by paying the state filing fees and any other charges. However, if you don't know what you are doing you may set up the company incorrectly, and the consequences may prove costly later. While you are at it, you can also go to a medical supply house, buy a scalpel and perform your own surgery. The point is that in order to correctly set up a corporation, you need a certain amount of expertise to determine among other things whether a corporation is the best business vehicle for you to do business. Perhaps a partnership or limited liability company would be better for you in your circumstances. As for incorporating in Delaware, Delaware has lax rules as far as corporate governance goes, which is important to large public corporations, but that does not necessarily save you much money, because if you are incorporated in Delaware and doing business in California, you are going to be subject to California tax. You should probably incorporate in the state where you have your primary place of business.

Question: My friend and I have shot a no-budget film that has been financed out of our own pockets and through donations from family members. In hopes of the movie being picked up we are planning to form a partnership. Should we go general or limited and do we need to consult with an attorney for the specifics of such a setup.

Answer: With a general partnership, all the partners have control over the enterprise and no one has limited liability. If everyone is comfortable with sharing decision-making and no one requires limited liability, that's the way to go. On the other hand, if you have passive investors, people who are going to put money into the enterprise but not be involved in managing it, a limited partnership would be the appropriate vehicle to achieve those ends. A limited partnership, however, is considered a security, and it needs to comply with the security laws, which can be fairly expensive. In a limited partnership, the limited partners have limited control and limited liability while the general partners in the limited partnership run the enterprise and have unlimited liability.

Question: I'm an independent producer here in St. Louis, and I'm putting together a trailer and business plan for fundraising purposes. I'm still not sure how I should raise money for this film. I've always been told that a "limited partnership" is the way to go, but now I'm hearing about other options (Loan Agreement, Limited Liability, etc). Most of the funds will come from family and friends. Is an LP necessary? And if one is, is it possible I can draft the contracts on my own (without a lawyer doing it) and still have them be legally binding. There are no entertainment attorneys here in St. Louis, and I don't want to pay for something I can do myself. Any advice would be helpful.

Answer: If you are making an arrangement with passive investors, that is investors who put money into the project, expect to share in the profits, and don't have any control over the project, then both state and federal securities laws apply. There is no exemption in the security laws simply because your investors are friends or family. So, technically, if you take money from them and don't comply with securities laws, you are in violation of the law.

A limited partnership provides limited liability to the investors, which is often important to them, and limits their control over the endeavor, which is often something that the general partner, the filmmaker, wants. Yes, you can draft contracts on your own, but that is no guarantee you'll do it correctly. Securities laws are extremely complex, and I would not advise you to do this on your own. If you want to save money, perhaps you should do some of the production legal work on your own.

Question: We have a project and are interested in soliciting investors without violating SEC rules. What can we say that's legal but still gets the point across, and what is illegal?

Answer: The most important thing to say is that you are not making an offer. You are simply having a preliminary discussion with people. In order to take money from investors, you need to either register your company with the SEC, which costs a considerable sum, or fall into one of the limited offering exemptions. A major restriction on these limited offerings exemptions is that you cannot do any public solicitations like mass mailings and cold-callings. And you'll be limited to thirty-five unaccredited investors. An accredited investor is essentially a wealthy, sophisticated investor. Everyone else is an unaccredited investor. If you can live with those restrictions, the cost of complying with securities laws is considerably less but still significant. If you violate the securities laws, you can be subject to civil and criminal penalties.

Question: Putting together a business plan just makes good business sense. However, I gather that it is a legal requirement. Is there a form that the SEC or state requires? If so, does the state supply it or is it boilerplate bought at a stationary store.

Answer: If you are raising money from private investors who will not be actively involved in producing the movie, their interests are called securities and you will need to comply with the state and federal security laws. These laws are very complex, and there are civil and criminal penalties for their violation. This is one area of the law where you need to retain experienced counsel to prepare a limited offering memorandum, usually accompanied with a proposed LLC or Limited Partnership Agreement. Don't do it yourself unless you are the type of person who thinks it would be okay to do brain surgery on yourself.

Question: I want to shoot a low budget film. My question is, is it better to form a corporation or a limited liability partnership?

Answer: The question of what is the best vehicle depends on several factors, primarily liability and taxes. Today most independent filmmakers will either: (1) incorporate, (2) form a limited liability company, or (3) form a limited partnership with their investors being the limited partners. If you set up an entity that is considered a separate legal entity from yourself, this may insulate you from liability should someone be injured during the shoot or a lawsuit arise. Establishing a separate entity may have some tax consequences, however, which could be either positive or negative.

DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.

Question: What's the proper procedure in trying to secure the rights to a feature property owned by a major distributor?

Answer: First, determine if the distributor or owner of the rights is willing to option or sell any rights to you. If a major studio has decided not to pursue the project itself, the producer who brought that property to the studio may have a turnaround or reversion clause enabling him/her to regain rights to the property. Moreover, if a distributor optioned a property, and the option lapsed without being exercised, the rights to the property may now reside with the author.

Question: I recently learned of a French book I would like to try and set up as a film here in the U.S. The publisher informed me a French production company is making a French version of the film right now. Is it possible to get English language rights from the producers in France and make the film here in English, or are the film rights tied up in one film/one language?

Answer: You need to contact the owner and review the deal made by him/her with the French company. If the owner licensed all rights to the French company, then you will need to negotiate with the French production company. If the owner, reserved English language rights, you could license them.

Question: I am currently working on an animation project that we have just pitched to a large animation production company. Till this point every company that has seen our project has been interested by the merchandising potential of our character(s) and concept. (We have heard the words "Teenage Mutant Ninja Turtles" many a time over the past year.)

The problem we have had up until this point is that we want to retain at least a good portion of the ownership and rights to our characters and concept. So far we have walked twice just for that reason. We were told it was not possible to keep the rights to our characters and ownership was unheard of in the industry. We have just pitched our idea, and though we have not heard if they plan to develop our concept, I am wondering if we are going to hit the same roadblock. They have told me off the bat that ownership was negotiable, but that was before they saw our material. My questions are: (1) What can I expect in reference to ownership? (2) How much is an idea worth in this business? They have told us that should they decide to develop our idea, they had the capability to finance it in-house (something they say they previously have not been able to do) and I'm almost anticipating them downplaying our idea for the reason of getting more out of the deal. We are essentially greenhorns, and I don't blame them for trying such a thing, but what is a good way to deter or counterattack such a tactic. Any suggestions would be greatly appreciated.

Answer: It is possible to retain merchandising rights. George Lucas did that on "Star Wars." However, your ability to retain merchandising rights will depend upon your negotiating clout and stature in the business. If you are just beginning, you may find it difficult to retain ownership rights.

Besides retaining ownership rights, there is also the issue as to how revenues from exploitation of the material are to be shared. If you gave up ownership rights, but were entitled to significant participation in revenues that were derived from your work, that might be a deal worth considering, if the company is reputable and if you have adequate assurances that you would actually be paid the money due to you.

Question: I've been offered an opportunity to write a screenplay under a Work Made for Hire agreement. I have written several screenplays of my own—the writing isn't the problem—it's the Work for Hire arrangement. Thus far, I've been given a very brief treatment and a contract stating that I essentially claim no rights to the "Owner's" film, which is fine. (I have not signed the contract as yet, by the way.) However, the treatment is very sketchy and in discussion with the owner I've been able to show him where particular aspects of his story might not work.

After researching the issue, he agreed that he had some flaws in his treatment and wanted to know how I thought they should be fixed. Basically, my question is this: What are my responsibilities in this type of relationship? To me it seems there should be a clear line between putting someone's developed story into script format and developing the story, plot, back-story, etc., which is what he's trying to have me do. If I'm developing the story, plot, etc., doesn't that then make me a co-writer? Or is this what "Work Made for Hire" is all about—the writer comes up with the story and the "Owner" gets all the glory?

Answer: The issue of who gets the glory and the credit is separate from who owns the property. In a work-for-hire arrangement, typically the employer owns the copyright to the work. The writer, however, may be entitled to sole or shared screenwriter credit. Keep in mind that if this is a Writers Guild agreement, the producer doesn't have the final say about the writing credit anyway. That's subject to Writers Guild arbitration.

Question: I am writing a book and within the book I would like to include a monologue from a major motion picture. How would I go about getting an "okay" from the motion picture company to do that? Who would I contact?

Answer: The studio that released the major motion picture most likely owns the copyright to it. Sometimes, however, a production company might retain the copyright and simply arrange for distribution by contract. At any rate, you should start by contacting the legal department at the studio that has released the picture to find out who owns the rights to the script. You cannot use a monologue from a major motion picture on another work without violating the copyright of the motion picture. There are a couple of exceptions. If the copyright for the motion picture has expired, then you can use the dialogue, or if you are using just a very short portion of the monologue, it might fall within the fair use doctrine.

Question: I am interested in remaking a variation of an old Hitchcock film. Would you direct me on how I should proceed so as not to incur any legal problems?

Answer: It is unlikely that the old Hitchcock film is in the public domain. Therefore, you will need to secure permission from the copyright owner. A good place to start is the studio that released the film. You should contact their legal department to determine who owns the copyright to the film. It is probably either the producer or a distributor. Then, you need to determine who owns the remake rights.

Question: How does Lucasfilm own the merchandising/licensing rights to all of the "Star Wars" episodes? Wouldn't the studio have control over that? Or do you have to be a heavy hitter like George Lucas to negotiate for that? My real question is this: Say I have a potential franchise movie idea and I would like to control (or at least participate in) the merchandising/licensing opportunities. Who controls those rights to begin with?

Answer: George Lucas was shrewd to reserve the merchandising rights when negotiating his deal with 20th Century Fox. Undoubtedly the studio did not realize how successful his picture would be, and how lucrative the various merchandising spin-offs would become. There is nothing preventing you when you negotiate with a distributor to reserve these rights. That being said, most distributors have awakened to merchandising potential from feature films, and they often insist on controlling these rights. If they pay you enough money, you may want to relinquish the rights.

Question: I am currently working with a member of one of the most popular bands of the Sixties on his story as a screenplay. I need to know what rights and clearances I need to use certain material. I don't mind controversy; I just don't want this project in any legal trouble. Thank you for your time, knowledge, and help.

Answer: The rights you need depend upon what you are planning to do. Certainly if you are going to be using the music of one of these bands, you will need to obtain various rights from the music owners. This may include composers, record companies and publishers of the music, as well as any musicians, vocalists, and lyricists. If you are going to be showing any footage of the band from prior performances, then you will need permission from the copyright owner of those film clips. If you are simply doing a documentary about the band, and not planning to incorporate any of their music, you may not need any rights. Assuming you don't defame them or invade their privacy, you may be protected under the First Amendment. But it seems to me to be particularly difficult to do a movie about a band without using some of their music.

Question: How does one go about obtaining the rights for movies for public viewing as does such stores as Blockbuster and home rental centers?

Answer: Tapes you rent from Blockbuster and other retail home video outlets are for home use only. These retailers do not have the right to license public performance rights. For this you need to contract directly with the copyright owner or licensee, which is often the distributor of the film.

DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.

Question: I am interested in having an entertainment attorney submit my screenplay to production companies. How is this handled? Will producers generally read unsolicited scripts submitted this way, or should query letters be sent first? Is getting an attorney as difficult as getting an agent? And how much would it cost?

Answer: While I will submit projects for existing clients, I personally will not accept new client if all that is needed is someone to submit scripts for them. I don't consider acting as a submission service to be legal work. Other attorneys may feel differently. Cost for entertainment attorneys is usually $250-$450 an hour. Yes, you should send a query letter first.

Question: I am a CA attorney and am also acting as a producer's rep for certain projects; I'm also considering shopping just scripts for several writers. Can you recommend a practice guide or bar material (CA) that addresses talent agency issues? I am particularly looking at these issues: When does legal representation cross over into agenting; Agency-client contracts, particularly for writers and below-the-line personnel; when does pitching a screenplay for a client cross the line into agenting, where a license is required; it is my understanding that agents can't also be producers (or more to the point agencies can't also be production companies, but personal managers can, i.e., Brillstein-Grey). Also, if repping scripts is agenting, which would preclude me from producing, as I suspect it would, what do you think of the idea of flipping options (optioning material, finding a buyer, assigning the option, and taking a fee or percentage when the option is exercised), as a way around the agent issue. Thanks for the advice.

Answer: Attorneys are regulated by the state bar and agents are regulated by the state labor department. Personal managers are not regulated at all, at least not at the present time in California. The difference between a talent agent and a personal manager is this: talent agents can solicit work for their clients. Personal managers are not supposed to. If a personal manager does solicit work, they can be liable and lose all their commissions. Although I don't know of any case law on this point, I would think that lawyers who perform functions similar to agents or personal managers would be subject to discipline under the state bar, not under labor department regulations. I don't know of any publications that discuss this issue.

Question: Could you please tell me what the going rate is for an entertainment attorney services for a single $2 million independent film (shot in a non-union state? I am attempting to hire an attorney and an accountant and I live in an area where film folks are lacking (in these fields).

Answer: Most attorneys in the motion picture business who practice entertainment law full-time reside in New York or Los Angeles areas. I doubt you would want to hire someone who doesn't specialize in this practice area. The going rates vary between two and four hundred dollars per hour, but some services, such as production legal work, may be performed on a flat fee basis. Generally, 1–1.5% of the budget is spent on production legal services. Hourly rates may be misleading. If you hire an experienced attorney at $400/hour and he or she can accomplish your task in one hour, that's a better deal economically then hiring a recent law grad at $100/hour who requires eight hours to complete the same task and then may not get it right. Hire someone who knows what they are doing and who is not learning on your dime.

Question: I live in Oklahoma and I have written a couple of scripts for "The Simpsons." Unfortunately, they only accept scripts that are submitted through agents, and, since I live in Oklahoma, I don't have one. A friend of mine advised me to consult you as to whether or not it would be possible to submit my scripts through an attorney. If I can, what steps should I take to get my scripts to an attorney?

Answer: You can write to entertainment attorneys and see if they are willing to represent you. Many attorneys however, myself included, do not like to be retained by clients simply to act as a script submission service. This is not really legal work. The companies that require that scripts be submitted through an agent attorney or attorney are simply using this as a device to filter out novices. They figure if a person is able to obtain an attorney or an agent, he/she is probably not an amateur. A listing of entertainment attorneys can be found in the Hollywood Bluebook directory, published by the Hollywood Reporter.

Question: I am a first-time screenwriter who has just been offered an option on an original spec screenplay. The producer in question wants to pay a token (c. $10/mo) amount for the exclusive rights to market and develop the project. My inclination is to move forward with the option. However, since I am not represented, I have anxieties about signing any agreement that may affect the future of my work. My questions: first, is there a pro-forma model of an option agreement that I can use as a reference; and second, how do I go about attaining representation?

Answer: An option agreement is generally one or two pages, but attached to it as an exhibit is the purchase agreement which is much more extensive. There is a sample agreement in my book, Contracts in the Film and Television Industry published by Silman-James Press. It can be found in bookstores and libraries. You should be cautious about using a form that you don't understand. Other people's forms were not drafted with your particular situation in mind. As for obtaining representation, you can retain a lawyer by paying him or her a fee or you can seek an agent to represent you on a contingent fee basis. Generally, agents are looking for writers who have some track record and are sellable to the publishing or entertainment community.

Question: Everyone knows about deferred pay for cast & crew in the independent/ low-budget film world. But do any entertainment attorneys that you are aware of offer their services on an entirely or partially deferred basis? Thanks for any info!

Answer: Most experienced entertainment attorneys do not work on an entirely deferred basis. Many will give a reduced rate or accept part payment on a deferred basis for low budget films. There may be some young attorneys wanting to break into the business who would be willing to work for free.

Question: I have several screenplays that I would like to submit directly to Production Companies, as I have had no luck in gaining the services of an Agent. Can a lawyer submit a screenplay directly to a production company and how would he go about it?

Answer: Yes, a lawyer who practices entertainment law can submit your project to production companies. However, many lawyers are not particularly interested in acting as a submission service. This is not really legal work; it is more of a clerical task. For myself, I will not take on a new client if their only need is to submit projects. An agent on the other hand, works strictly on a contingent fee basis, and the whole focus of their job is to find work for their clients, and sell their client's projects. For what you need done, an agent is more appropriate.

Question: I have a TV series that I will be pitching to production companies and networks. I do not have an agent. Would it be wise to have an entertainment lawyer already on retainer? And how important is it in picking one, can some actually help steer you towards agents and production companies?

Answer: You do not need a lawyer to accompany you when you go in to pitch your TV series. Only at the point where the other side says they want to make a deal is it important that you retain an attorney. I would advise you not to try to negotiate the deal yourself. Discuss the creative aspects of the endeavor. When you get to a point where they express a willingness to do a deal, they will have their business affairs person contact your attorney. In answer to your second question, yes, entertainment attorneys can help steer you towards agents and production companies, although many of them may be reluctant to take you on as a client if that is the sole purpose for retaining them.

Question: Help! I am working on a few script ideas I have for a currently running TV series namely Frasier and I need some advice, please. I contacted the studio and was able to find out that the series accepts at least one freelance script per year. I believe I have at least one script with a very good shot. The problem is they say I must have representation, an agent, but in that department I am at square one. I have contacted and received some listings from WGA and SAG. However, is there any particular agency you would recommend especially for new writers like me? Also, agent or no, would it be wise to get a copyright for my scripts before I show them to anyone at all. Thank you.

Answer: If you are a beginning writer, you may find it difficult to obtain any agent to represent you. Agents on the WGA list are agents who have signed franchise agreements with the WGA. Therefore, if you sign with one of these agents, you will not only be protected under labor laws, but also pursuant to the contract between the WGA and the agent. I would avoid agents that purport to represent writers who are not franchised by the WGA. I would definitely not sign with an agent who is not licensed by the state labor department in those states that license talent agents.

As for copyrighting the script, you obtain a copyright to your script when you create it, assuming it meets the other requirements of copyright law. You may choose to register your copyright, which would be a wise idea at any rate.

Question: I (the ARTIST) may enter into a screenplay option contract with two separate producers who are designated together as the "collective PURCHASER" in the language of the contract. The consideration offered to me as payment is a check for $500.00. Now let's say, hypothetically, that ten weeks after all parties sign the contract, PRODUCER A wants out of the deal and asks for the consideration check to be returned. As it happens I never cashed the check and I agree to PRODUCER A's request and return the un-cashed consideration check for $500.00. My question is this. Do I still have a binding contract with PRODUCER B or would I then have to renegotiate a separate contract with PRODUCER B because both were named collectively as the PURCHASER?

Answer: If Producer A has signed the contract, he cannot unilaterally withdraw. You are under no obligation to give him his money back. Assuming Producer B was a signatory of the contract, he is bound by it as well. You need to look at the terms of the contract to determine the respective rights of the parties.

Question: Where on the Internet might I find a sample non-disclosure form or contract. I have written a teleplay and treatment and want to cover myself legally when I submit it to interested parties. Also, what else do I need?

Answer: If the interested parties are producers or studio executives, not only will they refuse to sign your nondisclosure agreement, they will probably insist that you sign a submission release instead. There are copies of these documents in my book Contracts for the Film and Television Industry, 2nd Ed., Silman-James Press.

DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.

Question: If a person is writing a screenplay about an event in history, does a person need a release from every living person in order to use his or her name in a story?

Answer: Not necessarily. Unauthorized biographies and films are produced and protected under the First Amendment guarantee of free speech. If the subject is a public figure or public official, you won't be liable for defamation unless you recklessly publish defamatory matter. You will also need to make sure not to reveal any intimate details of subjects' lives that would be considered an invasion of privacy, or borrow more material than allowed as a fair use of any copyrighted material. If you are writing about a private individual, you must be more careful. Prior to production you should submit your screenplay for review by an experienced entertainment attorney to spot any problems. Often potential liability can be avoided by changing character names, locations and adding disclaimers.

Question: When making reference to cars, products (i.e., Toy Story), songs, etc. in your spec script, do you need to obtain the legal rights first?

Answer: You don't need permission to have a character merely mention a product in your script. It is good practice, however, for the producer to obtain a release before that product will be depicted in the film if the product is identifiable to the viewer. If the product is shown in a derogatory light, or if the producer implies that the film is endorsed or produced by the product manufacturer, there could be liability. However, merely showing a product in a film may not violate the rights of the product manufacturer. Likewise, if a character mentions a product name, there may not be any liability. Before you go into production on your script, it is good idea to have an attorney clear it, and look for any potential legal problems. There are often inexpensive ways to avoid liability by adding disclaimers, and slightly rewriting the script so no real live individuals are identifiable. As to products, if there is a problem, you can create a pseudo-product. See my article on movie merchandising for more info: http://www.marklitwak.com/movmerc.html

Question: I am about to attempt to interview for a true story. Problem is, my interview subject is in jail (found guilty for second degree murder). If I am able to get an interview with her, will I need rights to write about her? I've been told that I do not need one. Her sister and brother-in-law are also involved and I'd like to use their characters in the story. Will I need one from them? All other characters I can portray without their true identities. Do you have suggestions on how I might approach getting this interview and if so, what legal ramifications I may face? Can I write a portion of the TV movie from court transcripts and/or newspaper articles without worry?

Answer: Generally speaking, journalists can write about other people without getting any kind of release. You can be sure Mike Wallace on "60 Minutes" and reporters for the New York Times criticize individuals without getting their permission. This is a right that you have under the First Amendment. However, one's freedom of expression is limited in certain realms. You cannot invade another's privacy or defame another and claim the First Amendment as a defense. If this individual is a private individual, not a public figure or public official, you can be liable if you are negligent in publishing something about them that is defamatory or invades their privacy. Therefore, while it is often not required, it is not a bad idea to get a release from the subject that you are interviewing. The release would protect you from any claim based on defamation, invasion of privacy, right of publicity and may in addition grant you certain rights to confidential information like diaries or other information that is otherwise not available to the public. Moreover, obtaining life story rights of the subject might strengthen your bargaining position if you are attempting to use these rights to secure a network television deal. If you fictionalize characters and their identity cannot be determined from the circumstances, then you may not need a release.

Question: Is there an online source for standard legal forms used in the entertainment industry? Specifically, I've been asked to send a standard release (long form) with my script submission. Where can I find such a form?

Answer: I don't know of an online source for entertainment industry contracts. A submission release can be found in my book, Contracts for the Film & Television Industry, published by Silman-James Press. Typically, companies that are willing to accept submissions after a release is signed and they will supply the release.

Question: (1) Someone "gave" me the idea for a screenplay. (I didn't "steal" it—he knows I write screenplays, and he specifically suggested the idea to me as the basis for a screenplay.) If I were to sell a screenplay based on his idea, what is the usual industry standard for what percentage I would pay him for using his idea as the basis for my screenplay? (2) Someone else I know has been trying unsuccessfully to sell a novel he wrote. We have discussed the idea of my trying to turn his story into a screenplay, but he wants to know how we would split the proceeds if it is sold. What is the usual industry standard for splitting the money with the author when a screenplay is adapted from his unsold novel?

Answer: Generally speaking, ideas are as free as the air. You cannot copyright an idea, although clearly ideas can have value. There is no usual industry percentage for the purchase of ideas, since ideas are not bought and traded like a commodity. From the point of view of distributors and studios, an idea is only as valuable as the team that is going to implement it. Steven Spielberg can set up a mediocre idea with a major studio for big bucks, while a fledgling screenwriter with a better idea may have trouble selling it at any price. What is valued in Hollywood is the ability to create a great script or movie, not think-up an idea for one. The most valuable ideas come from people with a proven track record of turning their ideas into successful movies.

As for adapting a novel into a screenplay, it is customary for the screenwriter or producer to take an option on the novel. Assuming this is a relatively unknown work that has been out awhile and no one has sought to turn it into a movie, I would offer the novelist a one year option for $1,000 with one or more rights of renewal for $1,000 each, against a purchase price of $50,000 if it gets made as a television movie, and $100,000 if it gets made as a feature film. After you take the option, you will need to try to set up the finished screenplay with a producer or distributor. The quality and demand for the screenplay will determine what kind of price you can obtain for it. There are other ways you can structure a deal with this novelist. You can agree to split the proceeds from any sale of the screenplay.

Question: I am interested in selling a television show idea and I was wondering what steps I should take to pitch this idea.

Answer: Generally, ideas are not worth a great deal standing alone. There is no market per se for ideas. Steven Spielberg can probably sell a fairly mediocre idea very quickly if he is attached as the writer, director, or producer. On the other hand, your idea could be ten times better, but no one may want to even listen because you don't have Spielberg's track record.

Question: I read an article that talked about the importance of getting permission for the use of items that appear in films. I've heard of product placement but I didn't know it worked the other way around. If characters in a film are all sitting around drinking Budweiser do we have to get Anheuser-Busch's permission to use the bottles? What if stuff just appears in the background, like someone loading up their shopping cart with Cheerios and Pepsi? Do we need releases for that too?

Answer: You don't need to bother with releases if the products are shown fleetingly in the background. But if the products are featured on screen, it is good practice to get a release or have your art dept create a pseudo-product. That being said, it is doubtful whether a manufacturer would have a valid case against a filmmaker simply because the product was shown on screen in a non-derogatory manner. On the other hand, if you show a character drinking a Pepsi and then he falls on the floor sick, you may have disparaged the product and could be liable. Also, if you use the product in a manner that suggests the manufacturer has sponsored or endorsed your film, you can be liable for unfair competition. Keep in mind that many manufacturers are anxious to have their products in films, and they may well give you permission and a bunch of freebies as well.

Question: A few friends and I have recently graduated from law school and are interested in marketing a documentary. We shot this documentary in Daytona last year during Bike Week and think it has some commercial value. I understand that if we loop the footage to music we need to gain the performance rights, but what about releases from individuals on tape? Much of the documentary has close-ups of people who may or may not wanted to be in the film. Naturally, some performed rather unflattering things in retrospect. Is there any invasion of privacy issues here? Everything was taped outside, in public.

Answer: Generally speaking, anything one does in public is fair game in regards to other people photographing it or observing it. You waive your right of privacy when you publicly exhibit yourself to others. The documentary will probably be protected under the First Amendment even if some of the subjects are not happy with their portrayal. When Mike Wallace does a "60 Minutes" investigation, he does not obtain a release from the perpetrators of a scam. However, if you want to use the names or likenesses of people on products or merchandise, or in an entertainment program, you should secure releases.

Question: I am developing a movie script that centers on a company in L.A. during the mid-'60s. This company is still in operation today; however, it is their past that is of interest to me. How do I obtain the movie rights concerning this company? I've been told I have to "buy the rights." I would appreciate your help on this matter.

Answer: You have a First Amendment right to write and make a film about other people or companies without their permission as long as you don't invade their rights of privacy or defame them. When producers buy life story rights from an individual, often what they are buying is their cooperation and their willingness to disclose to the producer information that is not otherwise publicly available. If the movie is going to portray this company in a disparaging manner, then such a release, which would include a waiver of any right to sue you for disparagement is important. Otherwise, you may not need their permission. "60 Minutes" does not need permission of its subjects when it does an expose. But you can be sure that they are careful in documenting that they are presenting the truth. Truth, by the way, is an absolute defense to defamation.

Question: In our screenplay, there is a scene in which a newscaster states that "the ACLU and the National Gay Alliance have released information about a (fictional terrorist organization) ... etc." Do we need permission from each of these organizations to use their names in this context? We would appreciate your comments.

Answer: It is difficult to answer this question without knowing the context in which these organizations are mentioned. Under the First Amendment, you are generally protected in talking about other people and organizations. However, you can be liable for defamation if you defame another and injure their reputation. There are certain defenses to defamation, however, such as truth. After you finish your screenplay, you should have it reviewed by an experienced entertainment attorney to determine if there is any potential liability.

DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.

Question: I am writing a paper on producing a film for my entertainment and sports law class. I was hoping that you would give some pointers on how I may go about this. What does producing involve? Any information on financing, distribution, royalties, licensing, advertising—any help would greatly be appreciated.

Answer: There are mountains of information on all these topics. A recent book that has been published by Silman-James Press is called Movie Money. The book discusses creative accounting.

Question: What is the procedure for obtaining permission to produce a motion picture based on a novel that is currently out of print and the author is deceased?

Answer: It doesn't matter whether an author is dead or a book is out of print. You need to determine if the book is copyrighted or in the public domain. If copyrighted, you need to locate the owner(s) and license the rights to adapt it. If it is in the public domain, you don't need anyone's permission.

Question: My partner and I have been at the negotiation table trying to form a joint venture with a pop music group that also has their own production company. To the table we bring our product (13 episodes for the first season of our show), and they bring their connections and exposure to set up meetings with companies that we want to sell the show too.

What we are trying to do is sell the series to a brand name corporation, so they may use it as a form of indirect advertising (this deal would be in Malaysia) and the pop music groups production company would get to produce the series. As it stands, I've offered them 50-50 split of the profit sharing (before production costs) and the rights would stay with the creators. They want 50-50 profit sharing after production costs have been covered and they want joint rights. I think their requests are unreasonable, being that all we are asking from them is to set up meetings ... we've already created and developed the show.

Could you please help me to understand where the rights lie and if you were in my shoes what kind of other items would you make sure were covered within the contract.

Answer: It is not clear from the question whether you have produced, or intend to produce, 13 episodes, and whether the territory for the deal is Malaysia or a broader market. If you are just licensing a concept, then the other party is going to incur all the production costs. In this situation, joint rights and a fifty-fifty profit sharing is reasonable. On the other hand, if you are producing the show and simply licensing it to them for broadcast in Malaysia, you should just give them distribution rights for Malaysia. You would not give them a piece of the copyright of the underlying show. Typically in licensing deals for the smaller territories like Malaysia, the licensee pays a flat fee in return for the right to broadcast a show a certain number of times within a designated time period.

Question: If an assistant to a producer develops a project that gets green lit and turned into a motion picture and television show (including merchandising and ancillary markets), is there a standard and customary percentage (gross or of the producer's fees) that should be negotiated for this individual as well as a credit? Or is there no legal binder to any obligation? Thank you.

Answer: An assistant to a producer is probably an employee, and other than whatever salary the employee is entitled to, he would not have any interest in projects developed for the producer. Of course, if your agreement with the producer promises otherwise, then you need to look to those terms. As for a producer credit, that could range from anything that is merely honorary to a credit that represents what you actually did on the production. Notwithstanding all of the forgoing, if your job working for the producer does not involve developing projects, (i.e., this project was outside the scope of your employment), then you should be treated no differently than any outsider who has submitted a project to this producer.

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About Me

A veteran entertainment lawyer, arbitrator, expert witness and author, Mark Litwak has provided legal services or acted as a producer rep on more than 100 feature films. He is the author of 6 books including: Reel Power, Dealmaking in the Film and Television Industry (winner of the 1995 Kraszna-Krausz Book Award), Contracts for the Film and Television Industry, and Risky Business: Financing and Distributing Independent Film. He is also the author of the popular CD-ROM Movie Magic Contracts.
As a law professor, he currently teaches at the U.S.C. School of Law, and has previously taught at the Univ. of Puget Sound and Loyola Law Schools. He has been on the faculty at UCLA for 24 years. He has lectured for the American, California and Texas bar associations. A frequent speaker, he has lectured at many universities including Harvard, the American Film Institute, Columbia University and NYU. He has also presented movie industry seminars in England, Australia, South Africa and Canada.
Mark Litwak is AV®
Peer Review Rated by Martindale-Hubble and has been named a Superlawyer multiple times by the publishers of Law and Politics Magazine.